EEOC Clarifies Protections For LGBT Employees

There exist both state and federal employment anti-discrimination laws that protect employees if they are discriminated against because they possess certain characteristics. All the state employment anti-discrimination laws in New England have sexual orientation as an explicit protected characteristic and, with the exception of New Hampshire, also have gender identity as a protected characteristic. The federal employment anti-discrimination law is called Title VII, and it does not contain explicit protections for either sexual orientation or gender identity. The federal agency that receives employment discrimination complaints is the Equal Employment Opportunity Commission (EEOC).

In 2012, the EEOC announced that it would accept discrimination complaints from transgender employees as a form of sex discrimination. Recently EEOC Commissioner Chai R. Feldblum issued a memorandum that further clarifies protections for LGBT employees. The Commissioner states: “Any LGBT person who has experienced workplace discrimination on the basis of sexual orientation or gender identity may file a charge . . . claiming sex discrimination. A charge must be filed within 300 days (or sometimes 180 days) from the date of the discriminatory act.”

The EEOC considers gender identity discrimination a form of sex discrimination and will accept all charges of discrimination on the basis of sexual orientation and investigate them to determine if they state a claim of sex discrimination. For example, one type of sex discrimination involving sexual orientation is when it is assumed that men and women should only be sexually attracted to and marry individuals of a different gender.

In this memorandum, the EEOC also advocates for changing Title VII to include both sexual orientation and gender identity as specific protected characteristics because “. . . civil rights laws that explicitlyprotect LGBT people will raise visibility regarding such protection, will be a deterrent to discrimination, and will provide certainty that courts across the country will enforce the protections of these laws for LGBT people.”

The Employment Non-Discrimination Act (ENDA), which would add sexual orientation and gender identity protections to Title VII, has been introduced in Congress repeatedly, but has never passed.